THIS AGREEMENT made this 1st day of January, 2000.
BETWEEN: XXXXX HOLDINGS LTD.
#000 - 0000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(hereinafter called the "Landlord")
OF THE FIRST PART
AND: LANDSTAR, INC.
000-0000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(hereinafter called the "Tenant")
OF THE SECOND PART
1. LEASED PREMISES
The Landlord does demise and lease to
the Tenant the premises hereinafter described (the "Leased
Premises") situate in the building (the "Building") having
a municipal address of
0000 Xxxxx Xxxx
in the city of Victoria,
Province of British Columbia
(the Leased Premises, the Building, together with the
lands described in Schedule "A" attached hereto and present
and future improvements, additions and changes thereto being
herein called the "Property"), the Leased Premises situated
on the 6th Floor and consisting of approximately 2,671.3
square feet of usable area as outlined in red on the
Explanatory Leasehold Plan marked Schedule "B" attached and a
proportionate share common area allocation of 659.1 square feet,
for a total gross rentable area on the 6th floor of 3330.4
square feet. Square footage calculations and subsequent
adjustments thereto are to be in accordance with the Building
Owners and Managers Association (B.O.M.A.) standard measurement
procedures.
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2. TERM
(a) Term
TO HAVE AND TO HOLD the Leased Premises for
and during the term of five years (the "Term") commencing
the 1st day of January 2000 and terminating the 31st day
of December 2004.
(b) Overholding
If at the expiration of the Term or sooner
termination hereof, the Tenant shall remain in possession
without any further written agreement or in circumstances
where a tenancy would thereby be created by implication of
law or otherwise, a tenancy from year to year shall not be
created by implication of law or otherwise, but the Tenant
shall be deemed to be a monthly tenant only, at a rate
equivalent to one hundred fifty percent (150%) of the
"Basic Rent" (as hereinafter defined), payable monthly in
advance plus "Additional Rent" (as hereinafter defined) and
otherwise upon and subject to the same terms and conditions
as herein contained, excepting provisions for renewal (if any)
and leasehold improvement allowance (if any), contained herein,
and nothing, including the acceptance of any Rent by the
Landlord, for periods other than monthly periods, shall extend
this Lease to the contrary except any agreement in
writing between the Landlord and the Tenant and the Tenant
hereby authorizes the Landlord to apply any monies received
from the Tenant in payment of such monthly Rent.
3. RENT
(a) Basic Rent
The Tenant shall, without deduction or right
of offset, pay to the Landlord annually, adjusted
proportionally for partial years during the Term as rental
(herein called "Basic Rent") the sum of lawful money of the
jurisdiction in which the Leased Premises are located,
payable in equal monthly installments according to the
following schedule and commencing the1st day of January, 2000.
Year 1 -5 $15.00 P.S.F. $49,956.00 P.A. $4,163.00 P.M.
Annual Basic Rent shall be determined by
multiplying the above-referenced rates by the gross
rentable area as determined by an Explanatory Plan prepared
by a certified B.C. Land Surveyor.
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(b) Additional Rent
The Tenant shall, without deduction or
right of offset, pay to the Landlord yearly and every
year during the Term as additional rental (herein called
"Additional Rent");
(i) the amounts of any Taxes payable by the Tenant to
the Landlord pursuant to the provisions of Schedule "C"
attached hereto; and
(ii) the amounts required to be paid to the Landlord
pursuant to the provisions of Schedule "D" attached
hereto.
(c) Payment of Additional Rent
Except as otherwise expressly provided
herein,
Additional Rent shall be paid and adjusted with reference
to a fiscalperiod of twelve (12) calendar months
("Fiscal Period"),
which shall be a calendar year unless the Landlord shall
from time to time have selected a Fiscal Period which is
not a calendar year by written notice to the Tenant. Payment
of Additional Rent shall commence January 1, 2000.
The Landlord shall advise the Tenant in
writing of its estimate of the Additional Rent to be
payable by the Tenant during the Fiscal Period
(or broken portion of the Fiscal Period, as the case
may be, if applicable at the commencement or end of
the Term or because of a change in Fiscal Period) which
commenced upon the commencement dateof the Term and for each
succeeding Fiscal Period or broken portion thereof which
commences during the Term. Such estimate shall in every
case be a reasonable estimate and, if requested by the
Tenant, shall be accompanied by reasonable particulars of the
manner in which it was calculated. The Additional Rent
payable by the Tenant shall be paid in equal monthly
installments in advance at the same time as payment of
Basic Rent is due hereunder based on the Landlord's
estimate as aforesaid, except as otherwise
expressly provided herein. From time to time, the Landlord
may re-estimate, on a reasonable basis, the amount of Additional
Rent for any Fiscal Period or broken portion thereof, in which
case the Landlord shall advise the Tenant in writing of such
re-estimate and fix new equal monthly installments for the
remaining balance of such Fiscal Period or broken portion
thereof. Within ninety (90) days after the end of each such
Fiscal Period or broken portion thereof, the Landlord shall
submit to the Tenant a statement of the actual Additional
Rent payable in respect of such Fiscal Period or broken
portion thereof and a calculation of the amounts by which
the Additional Rent payable by the Tenant exceeds or is
less than (as the case may be) the aggregate installments
paid by the Tenant on account of Additional Rent
for such Fiscal Period. Within one year after the
submission of any such statement, the Tenant (through its
authorized representatives and accountants)may, at any
reasonable time after five (5) days' prior written notice
to the Landlord, examine all the Landlord's books and
records for the Property, which books and records shall
be kept in British Columbia, and the Landlord
shall keep complete and accurate books and records in
respect of all incomings and outgoings.
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Within thirty (30) days after the submission
of such statement either the Tenant shall pay to the Landlord
any amount by which the amount found payable by the Tenant
with respect to such Fiscal Period or broken portion thereof
exceeds the aggregate of the monthly payments made by it on
account thereof during such Fiscal Period or broken
portion thereof, or the Landlord shall pay to the Tenant any
amount by which the amount found payable as aforesaid is less
than the aggregate of such monthly payments.
That part of Additional Rent to be paid pursuant
to clause 3(b)(i) above shall be estimated as aforesaid
and for leases commencing prior to June 30th, the estimate
of the tax for the current calendar year shall be paid
by equal monthly payment from the date of commencement
through June 30th of the same year. For leases commencing
after June 30th, the tax for the current calendar year shall
be due and payable upon occupancy. Commencing on occupancy
and thereafter on July 1st in each year hereof, the
forthcoming year's tax shall be estimated as aforesaid and
shall be paid by equal monthlyinstallments such that by
June 1st of each subsequent year the estimate of the then
current calendar year's tax shall have been deposited with
the Landlord. Differences between actual tax and the
estimate thereof shall be notified and shall be payable
or refundable within 30 days of such notification. The
Landlord covenants to deliver to the Tenant forthwith upon
receipt of notification of any taxes, a statement of the
Tenant's proportionate share thereof and a statement of
account showing the amount paid pursuant thereto by the
Tenant and the balance due and payable.
(d) Accrual of Rent
Rent shall be considered as accruing from
day to day, and Rent for an irregular period of less than
one year or less than one calendar month shall be apportioned
and adjusted by the Landlord for the Fiscal Periods of the
Landlord in which the Tenancy created hereby commences and
expires. Where the calculation of Rent for a period cannot
be made until after the termination of this Lease, the
obligation of the Tenant to pay Additional Rent shall survive
the termination hereof and Additional Rent for such period
shall be payable by the Tenant upon demand by the Landlord.
If the Term commences or expires on any day other than the
first or the last day of a month, Rent for such fraction of
a month shall be apportioned and adjusted asaforesaid and
paid by the Tenant on the commencement date of the Term.
(e) Recovery of Rent
Rent and any other amounts required to be paid
by the Tenant to the Landlord under this Lease shall be
deemed to be and be treated as rent and payable and
recoverable as rent, and the Landlord shall have all
rights against the Tenant for default in any payment
of rent and other amounts as in the case of arrears in rent.
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(f) Limitations
The information set out in statements,
documents or other writings setting out the amount of
Additional Rent submitted to the Tenant under or pursuant
to this Lease shall be binding on the Tenant and deemed
to be accepted by it and shall not be subject to amendment
for any reason unless the Tenant gives written notice
to the Landlord within one (1) year of the Landlord's
submission of such statement, document, or writing
identifying the statement, document, or writing and
setting out in reasonable detail the reason why such
statement, document or writing should not be binding
on the Tenant. In such case, the Landlord and Tenant
will cause their accountants to use their best efforts
to resolve any dispute expeditiously and equitably.
4. DEPOSIT
The Tenant has delivered a certified cheque in
the amount of NIL Dollars payable to XXXXX HOLDINGS LTD.
for deposit. Such deposit monies shall be applied to the
Basic Rent and Additional Rent for the first two (2)
months of the term of the Lease.
5. GENERAL COVENANTS
(a) Landlord's Covenant
The Landlord covenants with the Tenant:
(i) that the Tenant, paying the Rent hereby reserved,
and performing its covenants herein contained, shall and may
peaceably possess and enjoy the Leased Premises for the Term,
without any interruption or disturbance from the Landlord
except as provided herein, or any other person
or persons lawfully claiming, by, through or under it, and
(ii) to observe and perform all the covenants and
obligations of the Landlord herein.
(b) Tenant's Covenant
The Tenant covenants with the Landlord:
(i) to pay Rent; and
(ii) to observe and perform all the covenants and
obligations of the Tenant herein.
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6. USE AND OCCUPANCY
The Tenant covenants with the Landlord:
(a) Use
Not to use the Leased Premises for any purpose
other than the conduct of the Tenant's business which is,
without the prior written consent of the Landlord, such
consent not to be unreasonably withheld or delayed.
(b) Waste, Nuisance, etc.
Not to commit, or permit, any waste, injury or
damage to the Property including the Leasehold Improvements
and any trade fixtures therein, any loading of the floors
thereof in excess of the maximum degree of loading as
determined by the Landlord acting reasonably, any
nuisance therein or any use or manner of use causing
annoyance to the Landlord.
(c) Insurance Risks
Not to do, omit or permit to be done or
omitted to be done upon the Property anything which would
cause to be increased the Landlord's cost of insurance
against perils as to which the Landlord has insured or which
shall cause any policy of insurance on the Property
to be subject to cancellation;
(d) Compliance with Law
To comply at its own expense with
all governmental laws, regulations and requirements
pertaining to the occupation and use by the Tenant of the
Leased Premises, the condition of the Leasehold
Improvements, trade fixtures, furniture and equipment
installed by or on behalf of the Tenant therein and the
making by the Tenant of any repairs, changes or
improvements therein, except for structural repairs or
up-grading or other matters for which the Landlord is
responsible hereunder;
(e) Rules and Regulations
To observe and perform, and to cause
its employees, invitees and others over whom the Tenant
can reasonably be expected to exercise control to observe
and perform the Rules and Regulations contained
in Schedule "E" hereto, and such further and other
reasonable rules and by the Landlord and notified in
writing to the Tenant, except that no change
or addition may be made that is inconsistent with this
Lease unless as may be required by governmental regulation
or unless the Tenant consents thereto. The imposition of
such Rules and Regulations shall not create or imply any
obligation of the Landlord to enforce them or create any
liability of the Landlord for their non-enforcement or
otherwise.
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7. ASSIGNMENT AND SUB-LETTING
(a) Assignment or Sub-Letting Procedures
The Tenant shall not assign this Lease
or sub-let the whole or any part of the Leased
Premises unless:
(i) the Tenant shall have received or procured
a bona fide written offer to take an assignment or sub-lease
which is not inconsistent with this Lease, and the acceptance
of which would not breach any provision of this Lease if
this paragraph is complied with and which the Tenant has
determined to accept subject to this paragraph being complied
with, and
(ii) the Tenant shall have first requested
and obtained the consent in writing of the Landlord
thereto, which consent the Landlord will not unreasonably
withhold or delay.
Any request for consent shall be in writing
and accompanied by a copy of the offer certified by the
Tenant to be true and complete, and the Tenant shall
furnish to the Landlord all information available to
the Tenant and requested by the Landlord as to the
responsibility, financial standing and business of
the proposed assignee or sub-tenant.
(b) Assumption of Obligations
No assignment shall be effective unless
the assignee shall execute an agreement in favour of the
Landlord, assuming all the obligations of the Tenant
hereunder from and after the effective date of the
assignment and shall pay to the Landlord its reasonable
fee for processing the assignment.
(c) Tenant's Continuing Obligations
The Tenant agrees that any consent to an
assignment or sub-letting of his Lease or Leased Premises,
shall not thereby release the Tenant of its obligations
hereunder.
8. REPAIR & DAMAGE
(a) Landlord's Repairs to Building & Property
The Landlord covenants with the Tenant
to keep in a reasonable state of repair, maintenance
and decoration, consistent with the standards of a first
class office building, reasonable wear and tear excepted:
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(i) those portions of the Property consisting of
stairways, landscaped areas, parking areas, and other
facilities from time to time provided for use in
common by the Tenant and other tenants of the Landlord and
the Landlord, and the exterior portions (including, without
limitation, foundations, exterior walls and roofs) of all
buildings and structures from time to time forming part
of the Property;
(ii) the Building (other than the Leased Premises)
including the systems for interior climate control, the
elevators and stairways from time to time provided
for use in common by the Tenant and the Landlord and the
systems provided for use in common by the Tenant and the
Landlord and the systems provided for bringing utilities
to the Leased Premises including without limitation,
Heating, Ventilating, and Air Conditioning Systems.
(b) Landlord's Repairs to Leased Premises
The Landlord covenants with the Tenant to
repair, as expeditiously as reasonably feasible, defects in
structural elements, exterior walls of the Building,
suspended ceiling, electrical and mechanical installations
standard to the Building installed by the Landlord in the
Leased Premises (if and to the extent that such defects are
sufficient to impair the Tenant's use of the Leased Premises
while using them in a manner consistent with this Lease)
and "Insured Damage" (as herein defined). The Landlord
shall in no event be required to make repairs to Leasehold
Improvements made by the Tenant, or by the Landlord on
behalf of the Tenant or to make repairs to wear and tear
within the Leased Premises.
(c) Tenant's Repairs
The Tenant covenants with the Landlord to
repair, maintain and keep at the Tenant's own cost except
insofar as the obligationto repair rests upon the Landlord
pursuant to this paragraph, the Leased Premises, including
Leasehold Improvements in good and substantial repair,
reasonable wear and tear excepted, provided that this
obligation shall not extend to structural elements or to
repairs which the Landlord would be required to make under
this paragraph but for the exclusion therefrom of defects
not sufficient to impair the Tenant's use of the Leased
Premises while using them in a manner consistent with this
Lease. The Landlord may enter the Leased Premises at all
reasonable times on notice to the Tenant and view the
condition thereof and the Tenant covenants with the
Landlord to repair, maintain and keep the Leased Premises
in good and substantial repair according to notice in
writing, reasonable wear and tear excepted. If the
Tenant shall fail to repair as aforesaid after reasonable
notice to do so, the Landlord may effect the repairs
and the Tenant shall pay the reasonable cost thereof to
the Landlord on demand. The Tenant covenants with the
Landlord that the Tenant will at the expiration of the
term or sooner termination thereof peaceably surrender
the Leased Premises and appurtenances in good and
substantial repair and conditions, reasonable wear and
tear excepted, except that within 10 days
after such expiration or sooner determination
the Tenant may remove from the Leased Premises anything
in the nature
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of trade or Tenant's fixtures and Tenant's equipment and
furnishings providedthat the Tenant, at its cost, forthwith
restores the premises to the condition
existing prior to the installation thereof.
(d) Indemnification
If any part of the Property becomes out of
repair, damaged or destroyed through the negligence of,
or misuse by, the Tenant or its employees, agents, or
others under its control, the Tenant shall pay the
Landlord on demand the expense of repairs or replacements,
including the Landlord's reasonable administration charge
thereof, necessitated by such negligence or misuse.
(e) Damage and Destruction
It is agreed between the Landlord and the
Tenant that:
(i) in the event of damage to the Property or to any
part thereof, if the damage is such that the Leased
Premises or any substantial part thereof is rendered
not reasonably capable of use and occupancy by the Tenant
for the purpose of its business for any period of time in
excess of ten (10) days, then
(1) unless the damage was caused by the fault or
negligence of the Tenant or its employees, agents,
invitees or others under its control from the date of
occurrence of the damage and until the Leased Premises
are again reasonably capable for use and occupancy as
aforesaid, the Rent payable pursuant to this Lease shall
xxxxx from time to time in proportion to the part or parts
of the Leased Premises not reasonably capable of such use
and occupancy, and
(2) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case may be
(according to the nature of the damage and their
respective obligations to repair as provided in
sub-paragraphs (a), (b), and (c) of this paragraph)
shall repair such damage with all reasonable diligence,
but to the extent that any part of the Leased Premises
is not reasonably capable of such use and occupancy by
reason of damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the Tenant
would otherwise be entitled hereunder shall not extend
later than the time by which, in the reasonable opinion
of the Landlord, repairs by the Tenant ought to have been
completed with reasonable diligence;
(ii) if the Leased Premises are substantially damaged
or destroyed by any cause and if in the reasonable opinion
of an independent architect or engineer appointed by the
Landlord given in writing within thirty (30) days of the
occurrence, the damage cannot reasonably be repaired within
one hundred and twenty (120) days after the occurrence
thereof, then the Lease shall terminate, in which event
neither the Landlord nor the Tenant shall be bound to repair
as provided in subparagraphs (a), (b), and (c) of this
paragraph, and the Tenant shall instead deliver up possession
of the Leased Premises to the Landlord with reasonable
expedition and Rent shall be apportioned and paid to the
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date of the occurrence;
(iii) if premises whether or not of the Tenant comprising
in the aggregate half or more of the total number of square
feet of rentable office area in the Property or half or more
of the total number of square feet of rentable office area
in the Building (as determined by an independent architect
or engineer appointed by the Landlord) or portions of the
Property which affect access or services essential thereto,
are substantially damaged or destroyed by any cause and
if in the reasonable opinion of an independent architect or
engineer appointed by the Landlord the damage cannot
reasonably be repaired within one hundred and twenty (120)
days after the occurrence thereof, then either the Landlord
or the Tenant may, by written notice to the other given within
sixty (60) days after the occurrence of such damage or
destruction, terminate this Lease in which event
neither the Landlord nor the Tenant shall be bound to repair
as provided in sub-paragraphs (a), (b) and (c) of this
paragraph, and the Tenant shall instead deliver up possession
of the Leased Premises to the Landlord with reasonable
expedition, but in any event within sixty (60) days
after delivery of such notice of termination, and Rent
shall be apportioned and paid to the date upon which
possession is so delivered up, (but subject to any
abatement to which the Tenant may be entitled under
sub-paragraph (e)(i) of this paragraph); and
(iv) the Landlord will cause any independent architect
or engineer appointed hereunder to deliver a true copy of
the certificate to the Tenant which the Landlord
will use his best efforts to obtain forthwith upon
receipt of said certificate.
9. INSURANCE AND LIABILITY
(a) Landlord's Insurance
The Landlord shall take out and keep
in force during the Term insurance with respect to the
Property except for the "Leasehold Improvements" (as
hereinafter defined) in the Leased Premises. The insurance
to be maintained by the Landlord shall be in respect of
perils and to amounts and on terms and conditions including,
without limitation, deductibles which from time to time
are insurable at a reasonable premium and which are normally
insured by prudent owners of properties similar to the
Property, all as from time to time determined at reasonable
intervals by arm's-length and reputable insurance advisors
selected by the Landlord, and whose opinion shall be
conclusive, and, with respect to all-risk insurance shall
be to full replacement value (excluding foundations).
Unless and until the insurance advisors shall state that
any such perils are not customarily insured against by owners
of properties similar to the property, the perils to be
insured against by the Landlord shall include, without
limitation, public liability, boilers and machinery, fire
and extended perils and may include at the option of the
Landlord losses suffered by the Landlord in its capacity
as Landlord through business interruption; provided that
the cost of such business interruption insurance and of
loss of rental insurance will not be included in Operating
Costs.
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(b) Tenant's Insurance
The Tenant shall take out and keep in force during
the Term:
(i) comprehensive general public liability insurance
covering personal and bodily injury, death and property
damage on all occurrence basis with respect to all
construction, installation and alterations done in the
premises by the Tenant, the business carried on in or
from the Leased Premises, the Tenant's use and occupancy
of the Leased Premises and of any other part of the
Property, with coverage for any one occurrence or claim
of not less than Two Million Dollars ($2,000,000) or
such other amount as the Landlord may reasonably require
upon not less than one (1) months' notice at any time
during the Term, which insurance shall include the Landlord
as a named insured and shall protect the Landlord in
respect of claims by the Tenant as if the Landlord were
separately insured.
(ii) Tenant's all risk legal liability insurance in an
amount not less than the replacement cost of the
Leased Premises;
(iii) insurance in respect of fire and such other
perils as are from time to time defined in the usual
extended coverage endorsement covering the Tenant's
leasehold improvements, trade fixtures, and the furniture
and equipment to their full insurable value;
(iv) plate glass insurance, for the benefit of the
Landlord and all mortgagees of the Landlord (the "Mortgagee")
and the Tenant, covering all plate glass in the
Leased Premises, including all thermopane glass and
plate glass windows and doors, in an amount equal to the
full insurable value thereof.
All insurance shall be effected with insurers and
brokers and upon terms and conditions satisfactory to the
Landlord. The Tenant shall furnish to the Landlord, upon
occupancy of the premises and upon an annual policy renewal
basis thereafter for each year the Lease is in effect,
certificates or other evidences acceptable to the Landlord
as to the insurance from time to time effected by the
Tenant and its renewal or continuation in force, together
with evidence as to the method of determination of full
replacement cost of the Tenant's leasehold improvements,
trade fixtures, furniture and equipment, and if the Landlord
reasonably concludes that the full replacement cost has
been underestimated, the Tenant shall forthwith arrange
for any consequent increase in coverage required under
sub-paragraph (b). If the Tenant shall fail to take out,
renew and keep in force such insurance, or if the evidences
submitted to the Landlord are unacceptable to the Landlord
(or no such evidences are submitted within a reasonable
period after request therefor by the Landlord), then the
Landlord may give to the Tenant written notice requiring
compliance with this sub-paragraph and specifying the
respects in which the Tenant is not then in compliance
with this sub-paragraph. If the Tenant does not within five
(5) days provide appropriate evidence of
compliance with this sub-paragraph, the Landlord may
(but shall not be obligated to) obtain some or all of the
additional coverage or other insurance which the
Tenant shall have failed to obtain,
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without prejudice to any other rights of the Landlord
under this Lease or otherwise, and the Tenant shall pay
all premiums and other reasonable expenses
incurred by the Landlord to the Landlord on demand.
All policies of insurance shall contain a waiver of
subrogation clause in favour of the Landlord and shall
also contain a clause requiring the insurer not to cancel
or change the insurance without first giving the Landlord
thirty (30) days prior written notice thereof.
In the event that both the Landlord and the Tenant
have claims to be indemnified under any such insurance,
the indemnity shall be applied first to the
settlement of the claim of the Landlord and the balance,
if any, to the settlement of the claim of the Tenant.
(c) Limitation of Landlord's Liability
The Tenant agrees that the Landlord shall
not be liable for any bodily injury or death of, or
loss or damage to any property belongingto the Tenant or
its employees, invitees or licensees or any other person in,
on or about the Property unless resulting from the actual
willful misconduct or negligence of the Landlord or its own
employees, agents or contractors. In no event shall the
Landlord be liable for any consequential damage which is
caused by steam, water, rain or snow or other thing which
may leak into, issue or flow from any part of the
Property or from the pipes or plumbing works, including
the sprinkler system therein or from any other place or for
any damage caused by or attributable to the condition
or arrangement of any electric or other wiring or of
sprinkler heads.
(d) Indemnity of Landlord
Except with respect to claims or liabilities
in respect of any damage which is Insured Damage to
the extent of the cost of repairing such
Insured Damage the Tenant agrees to indemnify and
save harmless the Landlord in respect of:
(i) all claims for bodily injury or death, property
damage or other loss or damage arising from the willful conduct
of any work or any negligent act or omission of the Tenant or
any assignee, sub-tenant, agent, employee, or contractor of
the Tenant, and in respect of all reasonable costs, expenses
and liabilities incurred by the Landlord in connection with
or arising out of all such claims, including the expenses of
any action or proceeding pertaining thereto, but excluding
any such costs in respect of which the Landlord is
re-imbursed from insurance proceeds; and
(ii) any reasonable loss, cost, (including, without
limitation, reasonable lawyer's fees and disbursements)
expense or damage suffered by the Landlord arising from any
breach by the Tenant of any of its covenants and obligations
under this Lease.
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(e) Definition of "Insured Damage"
For purposes of this Lease, "Insured Damage"
means that part of any damage occurring to the Property of
which the entire cost of repair (or the entire cost of
repair other than a deductible amount properly collectable
by the Landlord as part of the Additional Rent) is actually
recovered by the Landlord under a policy or policies of
insurance from time to time effected by the Landlord pursuant
to sub-paragraph (a). Where an applicable policy of
insurance contains an exclusion for damages recoverable from
a third party, claims as to which the exclusion applies
shall be considered to constitute Insured Damage only if
the Landlord successfully recovers from the third party.
10. EVENTS OF DEFAULT AND REMEDIES
(a) In the event of the happening of any one of
following events:
(i) the Tenant shall have failed to pay an installment
of Basic Rent or of Additional Rent or any other amount
payable hereunder when due, and such failure
shall be continuing for a period of more than ten (10)
days after receipt of written notice from the Landlord
that such installment or amount was due;
(ii) there shall be a default of or with any condition,
covenant, agreement or
other obligation on the part of the Tenant to be kept,
observed or performed hereunder (other than a condition,
covenant, agreement or other obligation to pay Basic Rent,
Additional Rent or any other amount of money) and such
default shall be continuing for a period of more than fifteen
(15) days after written notice by the Landlord to the
Tenant specifying the default and requiring that it
discontinue;
(iii) if any policy of insurance upon the Property or any
part thereof from time to time effected by the Landlord
shall be cancelled or about to be cancelled by the insurer
by reason of the use or occupation of the Leased Premises
by the Tenant or any assignee, sub-tenant or licensee of
the Tenant or anyone permitted by the Tenant to be upon the
Leased Premises and the Tenant after receipt of notice in
writing from the Landlord shall have failed to take such
immediate steps in respect of such use or occupation as
shall enable the Landlord to reinstate or avoid
cancellation (as the case may be) of such policy of
insurance;
(iv) the Leased Premises shall, without the prior written
consent of the Landlord, be used by any other persons than
the Tenant or its permitted assigns or sub-tenants
or for any purpose other than that for which they were
leased or occupied or by any persons whose occupancy is
prohibited by this Lease;
(v) the Leased Premises shall be vacated or abandoned,
or remain unoccupied without the prior written consent
of the Landlord, such consent not to be unreasonably
withheld
17
or delayed, for fifteen (15) consecutive days or more
while capable of being occupied;
(vi) the balance of the Term of this Lease or any of
the goods and chattels of the Tenant located in the
Leased Premises, shall at any time be seized in execution
or attachment; or
(vii) the Tenant shall make any assignment for the
benefit of creditors or become bankrupt or insolvent or
take the benefit of any statute for bankrupt or insolvent
debtors or, if a corporation, shall take any steps or
suffer any order to be made for its winding-up or other
termination of its corporate existence; or a trustee,
receiver or receiver-manager or agent or other like person
shall be appointed of any of the assets of the Tenant;
The Landlord shall have the following rights and
remedies all of which are cumulative and not alternative
and not to the exclusion of any other or additional
rights and remedies in law or equity available to the
Landlord by statute or otherwise:
(A) to remedy or attempt to remedy any default of the
Tenant, and in so doing to make any payments due or alleged
to be due by the Tenant to third parties and to enter upon
the Leased Premises to do any work or other things
therein, and in such event all reasonable expenses of
the Landlord in remedying or attempting to remedy such
default shall be payable by the Tenant to the
Landlord on demand;
(B) with respect to unpaid overdue Rent, to the
payment by the Tenant of the Rent and of interest
(which said interest shall be deemed included herein
in the term "Rent") thereon at a rate equal to the
lesser of two percent (2%) above the prime commercial
loan rate charged to borrowers having the highest credit
rating from time to time by the Landlord's principal
bank from the date upon which the same was due until
actual payment thereof and the maximum amount
allowed under the laws of the jurisdiction in
which the Building is located;
(C) to terminate this Lease forthwith by delivering
to the Tenant at the address prescribed in paragraph
18 dealing with notices, notice terminating the
Lease and to immediately thereafter cease to furnish any
services hereunder and enter into and upon the Leased
Premises or any part thereof in the name of the whole and
the same to have again, re-possess and enjoy as of its
former estate, anything in this Lease contained to the
contrary notwithstanding; and,
(D) to enter the Leased Premises as agent of the Tenant
and as such agent to re-let them and to receive the rent
therefore and as the agent of the Tenant to take possession
of any furniture or other property thereon and upon giving
ten (10) days' written notice to the Tenant to store the
same at the expense and risk of the Tenant or to sell or
otherwise dispose of the same at public or private sale
without further notice and to apply the proceeds thereof
and any rent derived from re-letting the Leased Premises
upon account of the Rent due and to become due under this
Lease and the Tenant shall be liable to the Landlord for
the deficiency if any.
18
(b) Payment of Rent, etc. on Termination
Upon the giving by the Landlord of a notice
in writing terminating =the Lease under sub-paragraph
(a)(C) of this paragraph, this Lease and the term shall
terminate, Rent and any other payments for which the Tenant
is liable under this Lease shall be computed, apportioned
and paid in full to the date of such termination forthwith,
in one lump sum as liquidated damages and not a penalty the
aggregate of Basic Rent and Additional Rent (as estimated
by the Landlord acting reasonably) for a period of six
months being the estimated time required for re-leasing the
Leased Premises or, if less than one year remains of the Term,
the aggregate of Basic Rent and Additional Rent
(as estimated by the Landlord acting reasonably) for the
unexpired portion of the Term. Upon termination of this
Lease and the Term, the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord, and the
Landlord may forthwith re-enter and take possession of them.
The Tenant shall pay to the Landlord on demand
all reasonable costs and expenses, including reasonable
lawyers' fees, incurred by the Landlord in enforcing any
of the obligations of the Tenant under this Lease.
11. Subordination and Attornment
This Lease and all rights of the Tenant hereunder
are subject and subordinate to all underlying leases and
charges or mortgages now or hereafter existing (including
charges and mortgages by way of debenture, note, bond, deeds
of trust and mortgage and all instruments supplemental thereto),
which may now or hereafter affect the Property or any part
thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof provided the lessor,
chargee, mortgagee or trustee agrees to accept this Lease
if not in default; and in recognition of the foregoing the
Tenant agrees that it will, whenever requested, attorn to such
lessor, chargee, mortgagee or trustee as a tenant upon all
the terms of this Lease. The Tenant agrees to execute
promptly whenever requested by the Landlord or by the holder
of any such lease, charge or mortgage an instrument of
subordination or attornment, as the case may be, as may be
required of it; provided that such lessor, chargee, mortgagee
or trustee concurrently delivers to the Tenant an enforceable
agreement, on terms reasonably satisfactory to the Tenant,
providing that notwithstanding such subordination or
attornment the Tenant will be entitled to quiet possession
and enjoyment of the Leased Premises in accordance with the
terms of this Lease as long as it is not in default hereunder.
19
12. CERTIFICATES
The Tenant agrees that it shall promptly whenever
requested by the Landlord from time to time execute and
deliver to the Landlord, and if required by the Landlord, to
any lessor, chargee or mortgagee (including any trustee) or
other person designated by the Landlord, an acknowledgment
in writing as to the then status of this Lease, including
as to whether it is in full force and effect, is
modified or unmodified, confirming the Basic Rent and
Additional Rent payable
hereunder and the state of the accounts between Landlord and
Tenant, the existence
or non-existence of defaults, and any other matters
pertaining to this Lease as to
which the Landlord shall request an acknowledgment.
The Landlord agrees that it shall promptly
whenever requested
by the Tenant from time to time execute and deliver to the
Tenant, and if required
by the Tenant, to any chargee or mortgagee (including any
trustee) or other
person designated by the Tenant an acknowledgment in writing
as to the then
status of this Lease, including as to whether it is in full
force and effect, is
modified or unmodified, confirming the Basic Rent and
Additional Rent payable
hereunder and the state of the accounts between Tenant and
Landlord, the
existence of defaults, and any other matters pertaining
to this Lease as to which
the Tenant shall request an acknowledgment.
13. INSPECTION OF AND ACCESS TO THE LEASED PREMISES
The Landlord shall be permitted on notice to
the Tenant to
enter and to have its authorized agents, employees and
contractors enter the
Leased Premises for the purpose of inspection, window
cleaning, maintenance,
providing janitor service, making repairs, alterations
or improvements to the
Leased Premises required at law or requested by the
Tenant, or to have access
to utilities and services (including all ducts and access
panels (if any), which the
Tenant agrees not to obstruct) and the Tenant shall
provide free and unhampered
access for the purpose, and shall not be entitled to
compensation for any
inconvenience, nuisance or discomfort caused thereby.
The Landlord and its
authorized agents and employees shall be permitted entry
to the Leased Premises
for the purpose of exhibiting them to prospective tenants.
The Landlord in
exercising its rights under this paragraph shall do so to
the extent reasonably
necessary so as to minimize interference with the Tenant's
use and enjoyment
of the Leased Premises provided that in an emergency the
Landlord or persons
authorized by it may enter the Leased Premises without
regard to minimizing
interference.
The landlord may close off all or part of the
building for
maintenance, repair, construction or reconstruction, and
may change the
location, arrangement or use of any part or parts of the
common areas.
The landlord reserves the following additional rights:
20
1. The right to change access doors or corridors;
2. The right of access to the tenant's premises to
effect changes
to the project;
3. The right of disruption; and
4. The right to erect hoarding, scaffolding and other
temporary
structures.
14. DELAY
Except as herein otherwise expressly provided,
if and whenever
and to the extent that either the Landlord or the Tenant
shall be prevented, delayed
or restricted in the fulfillment of any obligation hereunder
in respect of the supply
or provision of any service or utility, the making of any
repair, the doing of any
work or any other thing including, without limitation,
non-monetary defaults by
the Tenant hereunder (other than the payment of moneys required
to be paid by
the Tenant to the Landlord or otherwise hereunder) by
reason of:
(a) strike or work stoppages;
(b) being unable to obtain any material, service, utility
or labour required to
fulfill such obligation;
(c) any statute, law or regulation of, or inability to
obtain any permission from
any government authority having lawful jurisdiction
preventing, delaying or restricting
such fulfillment; or
(d) other unavoidable occurrence.
The time for fulfillment of such obligation
shall be extended during
the period in which such circumstance operates to prevent,
delay or restrict the
fulfillment thereof, and the other party to this Lease
shall not be entitled to compensation
for any inconvenience, nuisance or discomfort thereby
occasioned; provided that
nevertheless the Landlord will use its best efforts to
maintain services essential to
the use and enjoyment of the Leased Premises.
15. WAIVER
If either the Landlord or the Tenant shall
overlook, excuse,
condone or suffer any default, breach, non-observance,
improper compliance or
non-compliance by the other of any obligation hereunder,
this shall not operate
as a waiver of such obligation in respect of any continuing
or subsequent default,
breach, or non-observance, and no such waiver shall be
implied but shall only be
effective if expressed in writing.
21
16. SALE, DEMOLITION AND RENOVATION
The term "Landlord" as used in this Lease,
means only
the owner for the time being of the Property, so that in
the event of any sale
or sales or transfer or transfers of the Property, or the
making of any lease or
leases thereof, or the sale or sales or the transfer or
transfers or the assignment
or assignments of any such lease or leases, previous
landlords shall be and hereby
are relieved of all covenants and obligations of Landlord
hereunder, except for then
existing defaults by the Landlord in observance or
performance of its obligations
hereunder. It shall be deemed and construed without
further agreement between the
parties, or their successors in interest, or between
the parties and the transferee or
acquirer, at any such sale, transfer or assignment, or
lessee on the making of any
such lease, that the transferee, acquirer or lessee has
assumed and agreed to carry
out any and all of the covenants and obligations of
Landlord hereunder to Landlord's
exoneration, and Tenant shall thereafter be bound to and
shall attorn to such transferee,
acquirer or lessee, as the case may be, as Landlord under
this Lease.
17. LEASE ENTIRE AGREEMENT
The Tenant acknowledges that there are no
covenants,
representations, warrantees, agreements or conditions
express or implied, collateral
or other- wise forming part of or in any way affecting
or relating to this Lease save
as expressly set out in this Lease and Schedules attached
hereto and that this
Lease and such Schedules constitute the entire agreement
between the Landlord
and the Tenant and may not be modified except as herein
explicitly provided or
except by agreement in writing executed by the Landlord
and the Tenant.
18. NOTICES
Any notice, advice, document or writing
required or
contemplated by any provision hereof shall be given
in writing and if to the
Landlord, either delivered personally to an officer
of the Landlord or mailed by
prepaid mail addressed to the Landlord at the said
local office address of the
Landlord shown above, and if to the Tenant, either
delivered personally to the
Tenant (or to an officer of the Tenant, if a
corporation), or mailed by prepaid mail
addressed to the Tenant at the Leased Premises, and
if an address of the
Tenant is shown in the description of the Tenant above,
to such address as well.
Every such notice, advice, document or writing shall
be deemed to have been
given when delivered personally, or if mailed as
aforesaid upon the fifth day after
being mailed. The Landlord may from time to time by
notice in writing to the
Tenant designate another address as the address to
which notices are to be mailed
to it, or specify with greater particularity the
address and persons to which
such notices are to be mailed and may require that
copies of notices be sent to
an agent designated by it. The Tenant may, if an
address of the Tenant is
shown in the description of the Tenant above, from
time to time by notice in
writing to the Landlord designate another address as
the address to which such
notices are to be mailed.
22
19. INTERPRETATION
In this Agreement, "herein", "hereof",
"hereby",
"hereunder", "hereto", "hereinafter", and similar
expressions refer to this
Lease and not to any particular paragraph, clause or
other portion thereof,
unless there is something in the subject matter or
context inconsistent therewith
and the parties agree that all of the provisions of
this Lease are to be
construed as covenants and agreements as though words
importing such
covenants and agreements were used in each separate
paragraph hereof, and
that should any provision or provisions of this Lease
be illegal or not enforceable,
it or they shall be considered separate and severable
from the Lease and its
remaining provisions shall remain in force and be
binding upon the parties
hereto as though the said provision or provisions had
never been included,
and further that the captions appearing for the
provisions of this Lease have
been inserted as a matter of convenience and for
reference only and in no way
define, limit or enlarge the scope or meaning of this
Lease or of any provision hereof.
20. EXTENT OF LEASE OBLIGATIONS
This Agreement and everything herein
contained shall endure
to the benefit of and be binding upon the respective
heirs, executors, administrators,
successors, assigns and other legal representatives,
as the case may be, of each
and every of the parties hereto, subject to the granting
of consent by the Landlord
to any assignment or sublease, and every reference
herein to any party hereto
shall include the heirs, executors, administrators,
successors, assigns and other
legal representatives of such party, and where there
is more than one tenant or
there is a male or female party the provisions hereof
shall be read with all grammatical
changes thereby rendered necessary and all covenants
shall be deemed joint
and several.
21. USE AND OCCUPANCY PRIOR TO TERM
If the Tenant shall for any reason use
or occupy the Leased
Premises in any way prior to the commencement
of the Term without there
being an existing lease between the Landlord and
Tenant under which the Tenant
has occupied the Leased Premises, then during such
prior use or occupancy the
Tenant shall be a Tenant of the Landlord and shall
be subject to the same covenants
and agreements in this Lease mutatis mutandis.
23
22. GUARANTOR'S COVENANT
The Guarantor (if any is party to this
Lease and if more
than one jointly and severally) for valuable
consideration (receipt and
sufficiency whereof are acknowledged) hereby covenants,
promises and
agrees with the Landlord that it will at all times
pay or cause to be paid to the
Landlord the rent hereby promised or reserved and other
monies hereby promised
or secured at the time or times respectively appointed
therefor, and it will observe
and perform or cause to be observed or performed all
the covenants, terms,
provisos, stipulations and conditions herein contained
on the part of the Tenant
to be observed and performed and that it will at all
times indemnify, protect and
save harmless the Landlord from all loss, costs and
damage occasioned by the
Tenant or for which the Tenant is otherwise howsoever
responsible to the Landlord
in respect of this Lease. No indulgence shown by the
Landlord in respect of any
default by the Tenant which may arise under this Lease
and no extension or
extensions granted by the Landlord to the Tenant for
payment of monies hereby
secured or for the doing, observing and performing of
any covenant, agreement,
matter or thing herein contained to be done, observed
or performed by the Tenant
nor any dealings between the Landlord and the Tenant
or any other person(s)
shall in anywise modify, alter, vary or in anywise
prejudice the Landlord or affect
the liability of the Guarantor in anywise under this
covenant which shall continue
and be binding on the Guarantor as well after as
before default and as well during
as after expiry of this Lease until the said monies
are fully paid and satisfied.
23. SCHEDULES
The provisions of the following Schedules
attached hereto
shall form part of this Lease as if the same were
embodied herein:
Schedule "A" - Legal Description of Property
Schedule "B" - Outline of Leased Premises
Schedule "C" - Taxes Payable by Landlord and
Tenant
Schedule "D" - Services and Costs
Schedule "E" - Rules and Regulations
Schedule "F" - Leasehold Improvements
Schedule "G" - Option to Renew
24
IN WITNESS WHEREOF the parties hereto have
executed this Agreement.
The Corporate Seal of )
XXXXX HOLDINGS LTD. )
was hereunto affixed in the presence of: )
)
/s/D. Xxxxx Xxxxxxx ) c/s
by Signature -----------------------------------)
)
Title Authorized Signatory and Director )
The Corporate Seal of )
LANDSTAR, INC. )
was hereunto affixed in the presence of: ) c/s
)
/s/ Xxxxxxx X. Pinch )
by Signature -----------------------------------)
)
Title Authorized Signatory and Director )
25
SCHEDULE "A"
TO A LEASE AGREEMENT BETWEEN
XXXXX HOLDINGS LTD.
-and-
LANDSTAR, INC.
DATED the 1st day of January A.D., 2000.
Parcel Identifier 000-000-000
Xxx X, Xxxxxxx 00, Xxxxxxxx Xxxxxxxx Xxxx 00000
MUNICIPALLY DESCRIBED AS
0000 XXXXX XXXX
XXXXXXXX, XXXXXXX XXXXXXXX
26
C-1
SCHEDULE "C"
Taxes Payable by Landlord and Tenant
1. TAXES
Tenant's Taxes
(a) The Tenant covenants to pay all Tenant's
Taxes, as
and when the same become due and payable. Where any
Tenant's
Taxes are payable by the Landlord to the relevant taxing
authorities, the
Tenant covenants to pay the amount thereof to the taxing
authority
after receiving notice thereof from the Landlord and
on or prior to the
due date.
(b) The Tenant covenants to pay their proportionate
share
of the amount of the Landlord's Taxes in each Fiscal
Period to the Landlord in
equal monthly payments commencing January 1 each year as
provided herein.
(c) The Tenant covenants to pay to the Landlord
their
proportionate share of the reasonable costs and expenses
(including legal and
other professional fees and interest and penalties on
deferred payments)
incurred in good faith by the Landlord in contesting,
resisting or appealing
any of the Taxes.
Landlord's Taxes
(d) The Landlord covenants to pay all Landlord's
Taxes in a
timely manner subject to the payments on account of
Landlord's Taxes required
to be made by the Tenant elsewhere in this Lease. The
Landlord may appeal
any official assessment or the amount of any Taxes or
other taxes based on
such assessment and relating to the Property. In connection
with any such
appeal, the Landlord may defer payment of any Taxes or
other taxes, as the
case may be, payable by it to the extent permitted by law,
and the Tenant shall
co-operate with the Landlord and provide the Landlord with
all relevant
information reasonably required by the Landlord in
connection with any
such appeal.
Separate Allocation
(e) In the event that the Landlord is unable to
obtain from
the taxing authorities any separate allocation of Landlord's
Taxes, Tenant's
Taxes or assessment as required by the Landlord to make
calculations of
Additional Rent under this Lease, such allocation shall
be made by the
Landlord acting reasonably until receipt of allocation
from taxing authorities.
27
C-2
Information
(f) Whenever requested by the Landlord, the
Tenant shall
deliver to it and furnish such other information in
connection therewith as
the Landlord may reasonably require.
Tax Adjustment
(g) If the Building has not been taxed as a
completed and
fully occupied Building for any Fiscal Period, the
Landlord's Taxes will be
determined as the amount actually paid by the
Landlord, as verified by the
tax bills.
2. DEFINITIONS
In this Lease:
(a) "Landlord's Taxes" shall mean the aggregate
of all
Taxes attributable to the Property or the Landlord in
respect thereof and
including any amounts imposed, assessed, levied or
charged in substitution
for or in lieu of any such Taxes, but excluding such
taxes as capital gains
taxes, corporate, income, profit or excess profit taxes
to the extent that such
taxes are not levied in lieu of any of the foregoing
against the Property or the
Landlord in respect thereof.
(b) "Taxes" shall mean all taxes, rates, duties,
levies, fees,
charges, local improvement rates, capital taxes, and
assessments whatsoever
including fees, rents and levies for air rights and
encroachments on or over
municipal property imposed, assessed, levied or charged
by any school,
municipal, regional, provincial, federal, parliamentary
or other body, corporation,
authority, agency or commission, provided that "Taxes"
shall not include
any special utility, levies, fees, charges imposed,
assessed, levied or charged
which are directly associated with initial construction
of the Property.
(i) "Goods and Services Tax" - Despite any other
section or clause of this
Lease, the Tenant shall pay to the Landlord upon
demand an amount equal
to any and all Goods and Services Tax, it being the
intention of the parties
that the Landlord shall be fully reimbursed by the
Tenant with respect to any
and all Goods and Services Tax at the full tax rate
applicable from time to time
in respect of the Rent payable for the lease of the
Premises pursuant to this
Lease. The amount of the Goods and Services Tax so
payable by the Tenant
shall be calculated by the Landlord in accordance with
the applicable legislation
and shall be paid to the Landlord at the same time as
the amounts to which such
Goods and Services Tax apply and is payable to the
Landlord under the terms of
this Lease or upon demand at such other time or times
as the Landlord from time
to time determines. Despite any other section or clause
in this Lease, the amount
payable by the Tenant under this paragraph shall be
deemed not to be Rent, but
the Landlord shall have all of the same remedies for and
rights of recovery of such
amount as it has for recovery of Rent under this Lease.
28
C-3
(c) "Tenant's Taxes" shall mean the aggregate of:
(i) all Taxes (whether imposed upon the Landlord or the
Tenant)
attributable to the personal property, trade fixtures,
business, income,
occupancy or sales of the Tenant or any other occupant of
the Leased Premises,
and to any Leasehold Improvements or fixtures installed
by or on behalf of the
Tenant within the Leased Premises, and to the use by the
Tenant or any of the
Property; and
(ii) the amount by which taxes (whether imposed upon the
Landlord or the
Tenant) are increased above the Taxes which would have
otherwise been payable
as a result of the Leased Premises or the Tenant or any
other occupant of the
Leased Premises being taxed or assessed in support of
separate schools; and
5. "Tenant's Proportionate Share" shall be determined
on the basis of
the percentage obtained from the calculation of the
ratio which the floor
area of the Leased Premises bears to the total rentable
floor area of the
Building. The floor area of the Leased Premises shall
be as set forth in
Schedule "B" hereto. All areas shall be calculated by
the Landlord's land
surveyor whose measurements shall be binding pursuant
to the Building
Owners and Managers Association (B.O.M.A.) of
Vancouver, British
Columbia, standard measurement procedures.
29
D-1
SCHEDULE "D"
SERVICES AND COSTS
1. The Landlord covenants with the Tenant:
(a) Interior Climate Control
To maintain in the Leased Premises conditions
of
reasonable temperature and comfort in accordance with good
standards
applicable to normal occupancy of premises for office
purposes subject
to governmental regulations during hours to be determined
by the Landlord
(but to be at least the hours from 8:00 a.m. to 6:00 p.m.
from Monday to
Friday inclusive with the exception of holidays, Saturdays
and Sundays),
such conditions to be maintained by means of a system for
heating and
cooling, filtering and circulating air; the Landlord shall
have no responsibility
for any inadequacy of performance of the said system if
the occupancy of the
Leased Premises or the electrical power or other energy
consumed on the
Leased Premises for all purposes exceeds reasonable amounts
as determined
by the Landlord, or the Tenant installs partitions or other
installations in locations
which interfere with the proper operation of the system of
interior climate
control or if the window covering on exterior windows is not
kept fully closed;
(b) Janitor Service
To provide janitor and cleaning service to the
common areas
of the Building consisting of reasonable services in
accordance with the
standards of similar office buildings;
(c) Elevators, Stairways, Etc.
To keep available the following facilities
for use by the
Tenant and its employees and invitees in common with
other persons entitled
thereto;
(i) passenger and freight elevator service to each floor
upon which the
Leased Premises are located provided that the Landlord may
prescribe the hours
during which and the procedures under which freight elevator
service shall be
available and may limit the number of elevators providing
service outside normal
business hours;
(ii) common stairways giving access to the Building and
the Leased
Premises, including such other areas from time to time
which may be provided
by the Landlord for common use and enjoyment within the
Property;
30
D-2
2. ELECTRICITY
(a) the Landlord covenants with the Tenant to furnish
electricity to the Leased Premises (except Leased Premises
which have
separate meters or shall be charges prorate by square footage
where area meters
exist) for normal office us for lighting and for office
equipment capable of
operating from the circuits available to the Leased Premises
and standard to
the Building during hours to be determined by the
Landlord (but to be at least
the hours from 8:00 a.m. to 6:00 p.m. from Monday to
Friday inclusive with the
exception of holidays, Saturdays and Sundays) and during
such other hours that
the Tenant elects at its sole cost and expense subject to
governmental regulations;
(b) The amount of electricity consumed on the
Leased Premises
in excess of electricity required by the Tenant for
normal office use shall be as
determined by the Landlord acting reasonably or by a
metering device installed
by the Tenant at the Tenant's expense. The Tenant
shall pay the Landlord for
any such excess electricity on demand.
3. The Landlord shall maintain and keep in
repair the facilities
required for the provision of the interior climate control,
elevator (if installed in
the Building), and other services referred to in sub-paragraph
(a) and (c) of
paragraph 1 and sub-paragraph (a) of paragraph 2 of this
Schedule in accordance
with the standards of office buildings similar to the
Building, but reserves the
right to stop the use of any of these facilities and the
supply of the corresponding
services when necessary by reason of accident or breakdown
or during the making
of repairs, alterations or improvements, in the reasonable
judgment of the Landlord
necessary or desirable to be made, until the repairs,
alterations or improvements
shall have been completed to the satisfaction of the
Landlord.
4. ADDITIONAL SERVICES
(a) The Landlord may (but shall not be obliged)
on request of the
Tenant supply services or materials to the Leased Premises
and the Property
which are not provided for under this Lease and which are
used by the Tenant
(the "Additional Services") including, without limitation,
(i) replacement of tubes and ballasts;
(ii) carpet shampooing;
(iii) drapery cleaning;
(iv) locksmithing;
(v) removal of bulk garbage;
(vi) picture hanging;
(vii) special security arrangement; and
(viii) janitorial service to Demised Premises.
31
D-3
(b) When Additional Services are supplied or furnished
by the Landlord, accounts therefor shall be rendered by the
Landlord and
shall be payable by the Tenant to the Landlord on demand.
In the event
the Landlord shall elect not to supply or furnish Additional
Services, only
persons with prior written approval by the Landlord
(which approval shall
not be unreasonably withheld) shall be permitted by
the Landlord or the
Tenant to supply or furnish Additional Services to the Tenant
and the
supplying and furnishing shall be subject to the reasonable
rules fixed by
the Landlord with which the Tenant undertakes to cause
compliance and
to comply.
5. OPERATING CHARGES PAYABLE
(a) The Tenant covenants to pay the Landlord the
Tenant's
Proportionate Share of the amount of the Operating Costs in
each Fiscal Period;
(b) In this Lease, "Operating Costs" shall include
all operating
(but not capital) reasonable costs incurred or which will be
incurred by the
Landlord, determined in accordance with generally accepted
accounting principles
consistently applied, in the maintenance, operation,
administration and
management of the Property including without limitation:
(i) cost of heating, ventilating and air-conditioning;
(ii) cost of water and sewer charges;
(iii) cost of electricity, fuel or other forms of energy
which are not separately
metered and recovered or paid by tenants;
(iv) cost of insurance carried by the Landlord pursuant
to paragraph 9(a) of
this Lease except as otherwise provided therein;
(v) cost of building office expenses, including telephone,
rent, stationery
and supplies;
(vi) cost of all elevator maintenance and operation;
(vii) cost of operating staff, management staff and other
administrative
personnel, including salaries, wages, and fringe benefits;
(viii) cost of providing security;
(ix) cost of providing janitorial services, window cleaning,
and garbage
removal;
(x) cost of supplies and materials;
32
D-4
(xi) cost of decoration of common areas;
(xii) cost of landscaping;
(xiii) cost of maintenance and operation of the parking
area;
(xiv) cost of consulting engineering fees;
(xv) cost of replacements, additions and modifications
unless
otherwise included under Operating Costs under subparagraph
(xvi),
and cost of repair and;
(xvi) cost of each "Major Expenditure" (as hereinafter
defined) as
amortized over the period of the Landlord's reasonable
estimate of the
economic life of the Major Expenditure, but not to
exceed fifteen years,
using equal monthly installments of principal and interest
at ten percent
(10%) per annum compounded semi-annually, where "Major
Expenditure"
shall mean any single expenditure incurred during or
subsequent to the
Fiscal Period in which the Lease commences, for replacement
of machinery,
equipment, building elements, systems or facilities used in
connection with
the Property (or for modifications or additions to the
Property), if one of the
principal purposes of such modification or addition was to
reduce energy
consumption or Operating Costs or was required by
governmental regulation,
which expenditure is more than ten percent (10%) of the
total Operating Costs
for the previous Fiscal Period.
(c) Notwithstanding anything to the contrary
contained
in this Lease, in this Lease there shall be excluded
from
Operating Costs
the following:
(i) interest on debt and capital retirement of debt;
(ii) such of the Operating Costs as are recovered from
insurance
proceeds;
(iii) costs as reasonably determined by the Landlord of
acquiring
tenants for the Property;
8. costs associated with structural repairs or defects
in, or improper
constitution of, the Heating, Ventilating and Air
Conditioning Systems or the
drainage or sewage system.
33
D-5
6. In this Lease, "Tenant's Proportionate Share"
shall be
determined on the basis of the percentage obtained from
the calculation
of the ratio which the floor area of the Leased Premises
bears to the total
rentable floor area of the Building. The floor area of
the Leased Premises
shall be as set forth in Schedule "B" hereto. All areas
shall be calculated
by the Landlord's land surveyor whose measurements shall
be binding
pursuant to the Building Owners and Managers Association
(B.O.M.A.)
of Vancouver, British Columbia, standard measurement
procedures. The
proportionate share shall be subject to adjustment as
determined solely by
the Landlord and notified to the Tenant in writing for
physical increases or
decreases in the total rentable area of the Property
provided that the total
rentable area of the Property and the rentable area of
the Leased Premises
shall exclude areas designated (whether or not rented)
for parking and for
storage.
34
E-1
SCHEDULE "E"
RULES AND REGULATIONS
1. The sidewalks, entry passages, elevators (if any),
common
stairways shall not be obstructed by the Tenant or used
for any other
purpose than for ingress and egress to and from the
Leased Premises.
The Tenant will not place or allow to be placed in the
Building corridors
or public stairways any waste paper, dust, garbage,
refuse or anything
whatever.
2. The washroom plumbing fixtures and other water
apparatus shall
not be used for any purpose other than those for
which they were
constructed, and no sweepings, rubbish, rags, ashes or
other substances
shall be thrown therein. The expense of any damage
resulting by misuse
by the Tenant shall be borne by the Tenant.
3. The Tenant shall permit window cleaners to clean the
windows
of the Leased Premises during normal business hours, on
notice from the
Landlord.
4. No birds or animals shall be kept in or about the
Property nor
shall the Tenant operate or permit to be operated any
musical or
sound-producing instruments or device or make or permit
any improper
noise inside or outside the Leased Premises which may be
heard outside such
Leased Premises.
5. No one shall use the Leased Premises for residential
purposes, or
for the storage of personal effects or articles other than
those required for
business purposes without prior written approval of the
Landlord, such
approval not be unreasonably withheld or delayed.
6. All persons entering and leaving the Building
at any
time other than
during normal business hours shall register in the books
which may be kept
by the Landlord at or near the night entrance and the
Landlord will have the
right to prevent any person from entering or leaving the
Building or the Property
unless provided with a key to the premises to which such
person seeks entrance
and a pass in a form to be approved by the Landlord. Any
persons found in the
Building at such times without such keys and passes may be
subject to the
surveillance of the employees and agents of the Landlord.
7. No dangerous or explosive materials shall be kept or
permitted to be
kept in the Leased Premises.
8. The Tenant shall not install or permit the installation
or use of any
machine dispensing goods for sale in the Leased Premises
without the prior
written approval of the
35
Landlord. Only persons authorized by the Landlord shall be
permitted to
deliver or
36
E-2
to use the elevators for the purpose of delivering food or
beverages
to the Leased Premises.
9. The Tenant shall not bring in or take out, position,
construct, install
or move any safe, business machine or other heavy office
equipment without
first obtaining the prior written consent of the Landlord,
such consent not to be
unreasonably withheld or delayed. In giving such consent,
the Landlord shall
have the right acting reasonably in its sole discretion, to
prescribe the weight
permitted and the position thereof, and the use and design
of planks, skids or
platforms to distribute the weight thereof. All damage done
to the Building by
moving or using any such heavy equipment or other office
equipment or furniture
shall be repaired at the expense of the Tenant. The moving
of all heavy equipment
or other office equipment or furniture shall occur only at
times consented to by the
Landlord, acting reasonably, and the persons employed to
move the same in and out
of the Building must be reasonably acceptable to the
Landlord. Safes and other
heavy office equipment will be moved through the halls and
corridors only upon
steel bearing plates. No freight or bulky matter of any
description will be received
into the Building or carried in the elevators (if installed
in the Building) except during
hours reasonably approved by the Landlord.
10. The Tenant shall give the Landlord prompt notice of
any accident to or
any defect in the plumbing, heating, air-conditioning,
ventilating, mechanical or
electrical apparatus or any other part of the Building.
11. Except as set forth in any specific parking agreement
between the
Landlord and Tenant, the parking of automobiles shall be
subject to the reasonable
charges or rates comparable with others and the reasonable
regulations of the
Landlord. The Landlord shall not be responsible for damage
to or theft of any
car, its accessories or contents whether the same be the
result of gross negligence
or willful acts or omissions.
12. The Tenant shall not xxxx, drill into or in any way
deface the walls,
ceilings, partitions, floors or other parts of the Leased
Premises and the Building.
13. Except with the prior written consent of the Landlord,
such consent
not to be unreasonably withheld, no tenant shall use or
engage any person or
persons other than the janitor or janitorial contractor of
the Landlord for the
purpose of any cleaning of the Leased Premises.
14. If the Tenant desires any electrical or communications
wiring, the
Landlord reserves the right to direct qualified persons as
to where and how
the wires are to be introduced, and without such directions
no borings or
cutting for wires shall take place. No other wires or
pipes of any kind shall
be introduced without the prior written consent of the
Landlord.
15. The Tenant shall not place or cause to be placed any
additional
locks upon any doors of the Leased Premises without the
approval of the
Landlord, such consent not to .
37
E-3
be unreasonably withheld or delayed, and subject to any
conditions
imposed by the Landlord. Additional keys may be obtained
from the
Landlord at the cost of the Tenant
16. The Tenant shall keep the sun drapes (if any) in a
closed position
at all times. The Tenant shall not interfere with or
obstruct any perimeter
heating, air-conditioning or ventilating units.
17. The Tenant shall not conduct, and shall not permit,
any canvassing
in the Building.
18. The Tenant shall take care of the rugs and drapes
(if any) in the
Leased Premises and shall arrange for the carrying-out of
regular spot
cleaning and shampooing of carpets and dry cleaning of
drapes in a manner
acceptable to the Landlord.
19. Subject only to the provisions of paragraph 5 of
Schedule "F", the
Tenant shall not place or permit to be placed any sign,
advertisement, notice
or other display on any part of the exterior of the Leased
Premises or elsewhere
if such sign, advertisement, notice or other display is
visible from outside the
Leased Premises without the prior written consent of the
Landlord which may
be arbitrarily withheld except as provided herein. The
Tenant, upon request
of the Landlord, shall immediately remove any sign,
advertisement, notice or
other display which the Tenant has placed or permitted to
be placed which,
in the opinion of the Landlord, is objectionable, and if
the Tenant shall fail to
do so, the Landlord may remove the same at the expense of
the Tenant.
20. The Landlord shall have the right to make such other
and further
reasonable rules and regulations and to alter the same as
in its judgment
may from time to time be needful for the safety, care,
cleanliness and
appearance of the Leased Premises and the Building and
for the preservation
of good order therein, and the same shall be kept and
observed by the
Tenant, their employees and servants. The Landlord
also has the right,
acting reasonably, to suspend or cancel any or all
of these rules and
regulations herein set out.
38
F-1
SCHEDULE "F"
Leasehold Improvements
1. Definition of Leasehold Improvements
For purposes of this Lease, the term "Leasehold
Improvements"
includes, without limitation, all fixtures, improvements,
installations,
alterations and additions from time to time made, erected
or installed by
or on behalf of the Tenant, in the Leased Premises
including all partitions,
doors and hardware, however affixed, and whether or not
movable, all
mechanical, electrical and utility installations and all
carpeting and drapes
with the exception only of furniture and equipment not
of the nature of fixtures.
2. Installation of Improvements and Fixtures
The Landlord shall include in the Leased Premises
the"Landlord's
Work" (as hereinafter defined). The Tenant shall not make,
erect, install or
alter any Leasehold Improvements in the Leased Premises
without having
requested and obtained the Landlord's prior written approval.
The Landlord's
approval shall not, if given, under any circumstances be
construed as consent
to the Landlord having its estate charged with the cost of
the work. The
Landlord shall not unreasonably withhold or delay its approval
to any such
request, but failure to comply with the Landlord's reasonable
requirements from
time to time for the Building shall be considered sufficient
reason for refusal.
In making, erecting, installing or altering any Leasehold
Improvements the Tenant
shall not, without the prior written approval of the Landlord,
not to be unreasonably
withheld or delayed, alter or interfere with any installations
which have been made
by the Landlord or others and in no event shall alter or
interfere with window
coverings (if any) or other light control devices (if any)
installed in the Building.
The Tenant's request for any approval hereunder shall be
in writing and
accompanied by an adequate description of the contemplated
work and, where
appropriate, working drawings and specifications thereof.
If the Tenant requires
from the Landlord drawings or specifications of the
Building in connection with
Leasehold Improvements, the Tenant shall pay the reasonable
cost thereof to the
Landlord on demand. Any reasonable costs and expenses
incurred by the
Landlord in connection with the Tenant's Leasehold
Improvements shall be
paid by the Tenant to the Landlord on demand. All
work to be performed in
the Leased Premises shall be performed by competent
contractors and
sub-contractors of whom the Landlord shall have approved
in writing prior
to commencement of any work, such approval not to be
unreasonably
withheld or delayed (except that the Landlord may require
that the Landlord's
contractors and sub-contractors be engaged for any
mechanical or electrical work)
and by workmen who have labour union affiliations that are
compatible
with those affiliations (if any) of workmen employed by
the Landlord and its
contractors and sub-contractors. All such work including
the delivery, storage
and removal of materials shall be subject
39
F-2
to the reasonable supervision of the Landlord, shall be
performed in
accordance with any reasonable conditions or regulations
imposed by
the Landlord including, without limitation, payment on
demand of a
reasonable fee of the Landlord for such supervision, and
shall be completed
in good and workmanlike manner in accordance with the
description of the
work approved by the Landlord and in accordance with all
laws, regulations
and by-laws of all regulatory authorities. Copies of
required building permits
or authorizations shall be obtained by the Tenant at
its expense and copies
thereof shall be provided to the Landlord. No locks
shall be installed on the
entrance doors or in any doors in the Leased Premises
that are not keyed to
the Building master key system.
3. Liens and Encumbrances on Improvements and Fixtures
In connection with making, erection,
installation or
alteration of Leasehold Improvements and all other work
or installations
made by or for the Tenant in the Leased Premises, the
Tenant shall comply
with all the provisions of the Builders' Lien and other
similar statutes from
time to time applicable thereto (including any proviso
requiring or enabling
the retention by way of holdback of portions of any sums
payable) and except
as to any such holdback, shall promptly pay all accounts
relating thereto.
Pursuant to the Builders' Lien Act, the Tenant is required
to post a sign to
contractors, sub-contractors, material men and workers
stating that the
Landlord will not be responsible for the Leasehold
Improvements, such sign
to be posted in at least two (2) conspicuous places
on the Leased Premises.
The Tenant will not create any mortgage conditional
sale agreement or
other encumbrance in respect of its Leasehold
Improvements nor without
the written consent of the Landlord which may be
arbitrarily withheld with
respect to its trade fixtures nor shall the Tenant
take any action as a
consequence of which any such mortgage conditional
sale agreement or
other encumbrance would attach to the Property or any
part thereof. If
and whenever any mechanics or other tradesman's work,
labour, services
or materials supplied to or for the Tenant or for the
cost of which the Tenant
may be in any way liable or claims therefor shall arise
pursuant to which any
such mortgage conditional sale agreement or other encumbrance
shall attach,
the Tenant shall within twenty (20) days after submission
by the Landlord or
notice thereof procure the discharge thereof, including any
certificate of action
registered in respect of any lien, by payment or giving
security or in such
other manner as may be required or permitted by law and
failing which the
Landlord may avail itself of any of its remedies hereunder
for default of the
Tenant and may make any payments or take any steps or
proceedings required
to procure the discharge of such debts or encumbrances
and shall be entitled
to be repaid by the Tenant on demand for any such payments
and to be paid
on demand by the Tenant for all costs and expenses in
connection with steps
or proceedings taken by the Landlord and the Landlord's
right to reimbursement
shall not be affected or imparted if the Tenant shall
then, consequently establish
or claim that any lien or encumbrances discharges not
within reason or the right
or subject to any attachment, service or defense. The
Tenant agrees to indemnify
the Landlord from all claims, costs and expenses, which
may be incurred by the
Landlord if
40
F-3
any proceedings brought by any person against the
Landlord alone or
with another or others for or in respect of work, labour,
services or materials
supplied to or for the Tenant.
4. Removal of Improvements and Fixtures
All Leasehold Improvements in or upon the
Leased
Premises shall immediately upon their placement be and
become the
Landlord's property without compensation therefor to the
Tenant. Except
to the extent otherwise expressly agreed by the Landlord
in writing, no
Leasehold Improvements, furniture or equipment shall be
removed by the
Tenant from the Leased Premises either during or at the
expiration or
sooner termination of the Term except that:
(a) the Tenant may, at the times appointed by the
Landlord and subject
to availability of elevators (if installed in the Building),
remove its tenant or
trade fixtures, furniture and equipment at the end of the
Term and also during
the Term in the usual and normal course of its business
where such furniture
or equipment has become excess for the Tenant's purposes
or the Tenant is
substituting therefore new furniture and equipment.
(b) The Tenant shall, in the case of every removal; make
good at the
expense of the Tenant any damage caused to the Property by
the installation
and removal. In the event of the non-removal by the end
of the Term, or sooner
termination of this Lease, of such trade fixtures or
Leasehold Improvements
required by the Landlord of the Tenant to be removed,
the Landlord shall have
the option, in addition to its other remedies under this
Lease to declare to the
Tenant that such trade fixtures are the property of the
Landlord and the Landlord
upon such a declaration may dispose of such trade fixtures
and retain any proceeds
of disposition as security for the Debts, Liabilities and
Obligations and the
Tenant shall be liable to the Landlord for any expenses
incurred by the Landlord.
5. For the purpose of this Lease,
(a) The term "Tenant's Work" shall mean all work
required
to be done to complete the Leased Premises for occupancy
by the Tenant
excluding the "Landlord's Work" (as hereinafter defined).
(b) No signs shall be erected on the Building or
on the
exterior of the Leased Premises without the prior written
approval of the
Landlord; such approval not to be unreasonably withheld.
The Landlord
shall provide a lobby directory and shall display the name
of the Tenant
thereon.
In respect of any pre-approved signage, the Tenant
shall be
responsible for:
(i) all maintenance, repairs and replacements in order
to keep the
same in first class condition and appearance;
41
F-4
(ii) all damage caused by the same, in respect of which
the
Tenant hereby agrees to indemnify and save the Landlord
harmless;
(iii) maintaining insurance in respect of the same as
required by
the Lease;
(iv) all taxes of any kind arising in respect of same;
and
(v) all other responsibilities of any kind whatsoever
relating to the
same including the repair of any and all damage to the
Building or Premises
upon removal of such structures.
The Landlord shall have the right to require
the
Tenant to remove such signs, advertising material, placards,
window
and door lettering, erected, installed, put up or displayed
by the Tenant
as shall not meet with the approval of the Landlord. All
such signs shall
further be subject to the Municipality of Saanich by-laws
governing
such matters as amended from time to time.
(c) The term "Landlord's Work" shall mean:
(d) The term "Building Standard" shall mean the
specifications established by the Landlord for the building
from
time to time and as changed from time to time.
42
G-1
SCHEDULE "G"
OPTION TO RENEW
The Landlord covenants with the Tenant that if
the
Tenant duly and regularly pays the Rent and any and all
amounts required
to be paid pursuant to this Lease and performs each and
every covenant,
proviso and agreement on the part of the Tenant to be paid,
rendered,
observed and performed herein, the Landlord will at the
expiration of the
then expiring term on written notice by the Tenant to the
Landlord given
by the Tenant not less than six (6) months prior to the
expiration of the
then expiring term grant to the Tenant one (1) further
term of five years,
subject to the same covenants, provisions and agreements
as herein
contained except any improvement allowance and the option
for renewal
in this clause contained, which shall be negotiated at
that time, and the
rental amount which shall be the then market rate, but
not less than the
rent specified in Clause 3 (a) hereof. If no agreement
can be reached on
the rental amount, then the rent shall be determined by
arbitration in
accordance with the Arbitration Act of British Columbia.
Upon renewal and prior to commencement of the
renewal term, the Tenant covenants and agrees to execute
the Landlord's
standard renewal agreement.
43
